Employer loses against worker who allegedly sent 'unsolicited photos' to co-worker

The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued his employer dismissed him for being blamed after a “photograph” incident in the workplace.

In its defence, the employer opposed the worker’s application as it argued that the worker was not dismissed from employment.

‘Unsolicited’ photos sent by worker?

Prior to the case, the worker commenced employment as a casual employee on 25 October 2022 for a small private family business in the road transport industry.

Around May 2023, a customer filed a complaint to the employer as a female employee of the customer had been sent an explicit photograph from a device the customer believed to be from the worker who filed the application.

“On 10 May 2023, the employer advised [the worker] that an investigation into the complaint had commenced,” the FWC stated.

“During the investigation, [the worker] was placed on ‘yard’ duties and taken away from work with the customer,” it added.

The worker denied the allegation that he had sent the photograph and told his immediate supervisor that he was “utterly disgusted” that the employer would think he would do such an inappropriate action.

However, the investigation took longer than expected as the employer sought evidence from the customer and the customer’s staff member who had taken leave.

Hence, the longer the investigation occurred, the more concerned the worker became about losing his job.

Request for Employment Separation Certificate

Several exchanges of correspondence occurred between the worker and the employer regarding the investigation. However, it all boiled down to the worker asking by text for an Employment Separation Certificate because he believed he was terminated at that time because of the allegations against him.

In such a certificate, the employer marked the box “misconduct as an employee” because of the worker’s alleged action of “sending inappropriate texts to customers staff after told not interested causing emotional harm.”

The worker argued that he was dismissed because he was not given further work and that this was because the employer believed he had committed misconduct.

Meanwhile, the employer contended that the worker was not dismissed and remained a casual worker until he sought an Employment Separation Certificate.

“[The employer] submit that the Certificae was worded in the way it was because [the employer] believed that stating [the worker] had been dismissed on the Certificate meant that [the worker] would have immediate access to unemployment benefits,” the FWC noted.

HRD previously reported about a case wherein an employee was dismissed for sending “inappropriate messages”, through email and text, about staff members to his direct manager. Even the employee admitted that the messages were indeed “inappropriate” and “disgusting.”

In that case, the employee argued that the email messages between him and the line manager were “intended to be private and never shared with other people.”

He said the messages were merely about “two managers venting their frustrations in what was an extremely stressful job, working in a toxic environment".

Commission’s decision

After examining the case, the FWC dismissed the employer’s contention and noted that the worker was indeed dismissed.

“The failure to offer work and sending the Employment Separation Certificate in the terms drafted ended the employment relationship,” the Commission noted.

It also did not accept that the worker ended the relationship on his initiative when he asked for an Employment Separation Certificate.

“Where an employee requests an Employment Separation Certificate believing that their employment has already been ended by their employer’s conduct then the mere asking for the Certificate is not a termination on the employee’s initiative,” the FWC stated.

Thus, the Commission ruled that the worker was dismissed and so, it ordered a conference for conciliating the dispute between the parties.